Excerpt: - - 3. we may observe in this connection that in view of the very difficult questions involved we enquired of both the parties whether they did not consider it would be the better course to have the matters finally decided in an action instead of on an application; and if either of them the said mary harriet annie wilson and the said hester alice gray shall die leaving no child living at her death who being a son shall attain the age of twenty-one years or being a daughter shall attain that age or marry then after the death of either of them the said mary harriet annie wilson and the said hester alice gray and such default or failure of children i bequeath the said moneys and the investments representing the same or so much thereof as shall not have become vested or has been applied.....srinivasa aiyangar, j.1. the task before us in this appeal is, as lord loughborough, the lord chancellor, observed in a case, to find out the meaning of words which the party using them did not understand. it relates to the construction of the will of one, charles gray. the matter came up before mr. justice devadoss on the original side on a summons taken out by the administrator-general of madras for the purpose of construing the will and determining the rights thereunder of two claimants on behalf of each of whom it was urged that in the events that have happened he or she has become entitled to the part of the estate in question. there can be no doubt that the first principle to be borne in mind in regard to construction of wills is that, as far as possible, the real intentions of the.....

Judgment:

Srinivasa Aiyangar, J.

1. The task before us in this appeal is, as Lord Loughborough, the Lord Chancellor, observed in a case, to find out the meaning of words which the party using them did not understand. It relates to the construction of the will of one, Charles Gray. The matter came up before Mr. Justice Devadoss on the Original Side on a summons taken out by the Administrator-General of Madras for the purpose of construing the will and determining the rights thereunder of two claimants on behalf of each of whom it was urged that in the events that have happened he or she has become entitled to the part of the estate in question. There can be no doubt that the first principle to be borne in mind in regard to construction of wills is that, as far as possible, the real intentions of the testator as expressed in the will should be gathered and ascertained and given effect to. The so-called rules of construction to be found in such abundance, more especially in English decisions, are merely aids to enable us to discern or discover the real intentions of the testator and not artificial rules which should be allowed to over-ride in any given case the expressed intentions of the testator.

2. Lord Halsbury, the Lord Chancellor, referred in the case of Leader v. Duffey (1888) LR 13 AC 294 to the modern view which he thought was in accord with reason and commonsense that whatever the instrument it must receive a construction according to the plain meaning of the words and sentences therein contained. Referring to this observation of the learned Lord Chancellor, Lord Justice Cottoni in the case of In re Hamlet (1888) LR 39 Ch D 426 observes that rules of construction are only intended to aid us where there is ambiguity, and not to enable us to get rid of the express words of the testator if expressed in clear language. This would undoubtedly be so in the case of an instrument expressed in plain language by a layman. When however we come to an instrument, which, having regard to the form and the technical language employed may aptly be described as being in a language which the party using did not himself understand we come to a state of things in which we cannot altogether ignore even the technical rules of construction. The will before us was not only by an Englishman and in the English language but was apparently drawn up by one of the leading Solicitors in Madras at the time, and bristles with technical expressions and clauses which are to be found in all common forms and in most of the cases. When such highly technical expressions are used in an instrument it is not possible entirely to ignore the construction placed on such technical expressions by eminent and learned Judges in the Courts of Chancery in England; because it must be assumed that the technical expressions employed have been employed with the meaning and significance generally believed to attach to them in the particular branch of the law.

3. We may observe in this connection that in view of the very difficult questions involved we enquired of both the parties whether they did not consider it would be the better course to have the matters finally decided in an action instead of on an application; but both of them have agreed that any decision come to on this application should have the same effect as a decision in a suit between them so as to bind them finally.

4. The facts are these : The testator left a son and two daughters and the contest here relates to the sum of Rs. 30,000 left to the younger daughter Hester Alice Gray and her branch.

5. The clauses in the will relating to the disposition of this sum of Rs. 30,000 are as follows:

And as to the sum of rupees thirty thousand a further part of the said investments upon trust to pay the dividends and interest and income arising from the same unto my daughter, the said Hester Alice Gray, for her life for her sole and separate use free from the debts and control of any husband that she may marry and her receipt alone to be a sufficient discharge for the same and after the. death of the said Hester Alice Gray in trust for the lawful children or any of the lawful child of the said Hester Alice Gray, who, being sons or a son, shall attain the age of twenty-one years or being daughters or daughter, shall attain that age or marry, and if more than one, in equal shares. Provided also that the said trustees or trustee may, after the death of either of them, the said Mary Harriet Annie Wilson or the said Hester Alice Gray, or previously thereto if she shall so direct in writing, raise any part or parts not exceeding one-half part of the then expectant, presumptive or vested share or fortune of any child under the trusts hereinbefore declared ,and apply the same for his or her advancement or benefit and I declare that the said trustees or trustee shall, after the death of the mother of any child entitled in expectancy under the trusts hereinbefore declared, apply the whole or such part as they or he shall think fit of the annual income of the share or fortune to which any child shall for the time being be entitled in expectancy under the trusts hereinbefore declared for or towards the maintenance or education of such child either directly or to his or her guardians without seeing to the application thereof or requiring any account of the same and shall during such suspense of absolute vesting accumulate the residue (if any) thereof in the way of compound interest by investing the same and the resulting income thereof in or upon any such stocks, funds or securities as are hereinbefore mentioned for the benefit of the person or persons who under the trusts herein contained shall become entitled to the principal fund from which the same respectively shall have proceeded with power for the said trustees or trustee to resort to the accumulation of any preceding year or years and apply the same for or towards the maintenance or education of the child for the time being presumptively entitled to the same respectively.

6. Later on in the will there is the following clause:

And if either of them the said Mary Harriet Annie Wilson and the said Hester Alice Gray shall die leaving no child living at her death who being a son shall attain the age of twenty-one years or being a daughter shall attain that age or marry then after the death of either of them the said Mary Harriet Annie Wilson and the said Hester Alice Gray and such default or failure of children I bequeath the said moneys and the investments representing the same or so much thereof as shall not have become vested or has been applied under the trusts aforesaid....unto my son Charles Thomas Campbell Gray, who I hereby appoint as my residuary legatee.

7. The facts material for the purpose of understanding the claims and contentions before us have been admitted. Hester Alice Gray died on the 28th of November, 1922. When she died she had no issue living. Her only son E.G. Adams had died in June, 1918, after having attained twenty-one years of age. The claimants before us are Mrs. Gray, the widow and representative of Charles Thomas Campbell Gray, son of the testator, and Rev. Mr. Adams, the father and representative of E.G. Adams. The case for Mrs. Gray has been put in two ways and it is contended that in either of those two ways she. would be the person entitled to the moneys now representing the bequest aforesaid of Rs. 30,000. It is firstly contended that the interest created in favour of the children of Hester Alice Gray is a contingent interest and on a proper construction of the various clauses in the will no children of Hester Alice Gray could get a vested interest in it unless both of the two contingencies are satisfied, namely : completion of the twenty-first year and surviving Hester Alice Gray, the mother. On this it is argued that as E.G. Adams did not survive his mother but died before her, he took no vested interest although he completed his twenty-first year. In default therefore of any children of Hester Alice Gray taking, it is said that Mrs. Gray, who now represents the son of the testator, has become entitled. Secondly, in the alternative, it is contended that assuming that E.G. Adams took a vested interest in the fund, the later clause in the will above recited containing the gift over is in the nature of a defeasance clause and on a proper construction thereof when he did not survive his mother, his vested interest, if any, became divested and devolved by way of gift over upon the representative of the testator's son.

8. The contention on behalf of Rev. Mr. Adams was that on a proper construction of the will the son of Hester Alice Gray took a vested interest on his completing his twenty-first year even before the death of his mother, and that the gift over clause could not, on a proper construction thereof, operate by way of defeasance, at any rate with regard to any interest already vested.

9. What we have therefore to decide is which of these two sets of contentions should be upheld as being the right one. The learned Judge on the Original Side came to the conclusion that as E.G. Adams did not survive his mother he took no vested interest in the estate and he accordingly decided that Mrs. Gray was entitled to the fund. We have heard full arguments from the learned Counsel on both sides and after a careful consideration of all the contentions we have come to the conclusion that the decision of the' learned Judge was wrong.

10. The learned Judge appears to have misdirected himself 'By a consideration of the terms of the gift over clause in arriving at a conclusion with regard to the question of vesting. Holding that there was no vesting he concluded that the gift over clause should have operation.

11. The questions for solution, therefore, are : firstly, whether on a true construction of the several clauses in the will, E.G. Adams obtained a vested interest in the fund in question; and secondly, if he did, whether such interest became divested by the gift over taking effect on his dying before his mother and not surviving her.

12. There is no dispute about the life-interest bequeathed to Hester Alice Gray. The remainder is given to the lawful child of the said Hester Alice Gray, who, being a son, shall attain the age of 21 years. This is the clause, therefore, which has to be looked at for the purpose of determining the question regarding the nature of the estate given or bequeathed. And unless a contrary intention to be gathered from any other clause in the will should be found to affect the nature of the estate given under this clause, it follows that the question whether or not E.G. Adams obtained a vested interest in the fund should be determined solely by reference to this clause. We shall advert later to the other clauses in the will bearing in any manner on the present question. It is perfectly clear from all the text-books and the decided cases that if a bequest is to a person for life and after his death to his children, the bequest becomes vested in each child as and when he or she is born and the 'vesting is not postponed till the death of the life-tenant. The expression ' after his death ' is taken to indicate merely the time when the gift over becomes reduced to possession and not the time when the right to such possession vests. See Hallifax v. Wilson (1809) 16 Vesy 168. The principle underlying this rule is that no contingency is imported by the mere fact that the legacy is given after a life-estate in the property bequeathed. As nothing is more certain than that every person who lives must die, the death of a life-tenant is an event not contingent but certain; and therefore a gift on the death of a life-tenant is a bequest to take effect not on a contingency but on an event certain to happen; and therefore the donees of the gift are held to obtain a vested interest in it as and when they come into being. But if the bequest had been not merely after the death of the life-tenant but to such of her children as may survive her or should be alive at her death, then clearly the condition of surviving or being alive at her death would be a condition precedent to the vesting itself, and in such a case, therefore, no child that does not so survive will acquire a vested interest in the bequest. The obvious principle underlying this rule of construction is that though the death of the life-tenant is certain, still it is by no means certain that the donee will survive the life-tenant. And if from the words of the gift the intention of the testator is clear that the persons taking should be only such persons as survive or are alive on the death of the life-tenant then it follows necessarily that it is a contingent gift upon the donee surviving the life-tenant. Till such contingency is fulfilled, there can be no vesting. But there are no such words in the clause creating the bequest under reference. The words merely are, 'after the death of Hester Alice Gray' and there are no such words as 'to such of the children of Hester Alice Gray as may survive her or should be alive at her death. ' It therefore follows that if the words of the gift had been merely ' to Hester Alice Gray and after her death to her children or child, ' E.G. Adams would have taken a vested interest in the fund on his birth. But then there are further words in the clause, viz., ' who being a son shall attain the age of twenty-one years. ' There can be no doubt whatever that the attaining of twenty-one years is clearly a condition and the intention of the testator was (apart from other clauses in the will), that no son of Hester Alice Gray who does not attain twenty-one years should take. The requirement, therefore, that the son of Hester Alice Gray to take should be one who had attained twenty-one years is a contingency and would make the bequest a contingent bequest. The position, then, is this : that a bequest to E.G. Adams, which would otherwise have vested on his birth, is made contingent on his attaining twenty-one years. It logically follows from this position that the contingency being fulfilled on his attaining twenty-one years the bequest becomes vested in him immediately on his attaining twenty-one years without any reference whatever to the death of his mother, Hester Alice Gray, whether such death takes place either after or before he should attain that age.

13. This was what was decided in Maitland v. Chalie (1877) 6 Maddock Reports 243 The principle or correctness of this case has never been doubted. Thus, it is clear that under the terms of the clause in the will creating the bequest and on its proper construction, E.G. Adams obtained a vested interest in the fund on his attaining twenty-one years.

14. Having arrived at this result without any consideration whatever of the other clauses in the will, we may now consider the bearing of such other clauses on this conclusion. The provision in the will with regard to the application up to one-half out of the corpus of the fund for the advancement of any child of Hester Alice Gray with her consent in writing during her lifetime and after her death at the discretion of the trustees, is also a clear indication of the intention of the testator as deduced above. For, it clearly points to a considerable benefit in the legacy accruing to such children even before the arrival of the period of distribution. Again it is significant that the testator in that part of the clause should have used the words ' the then expectant, presumptive or vested share or fortune of that child '--words which are obviously calculated to suggest the possibility contemplated by the testator of a vesting in a child even before the death of the mother. The provision in the will in the succeeding clause relating to the gift of the interest or income relating to the share or fortune of each child is also a clear indication regarding the intention of the testator as to the vesting. This rule was laid down by Jessel, M. R. in Fox v. Fox (1875) 19 Eq Cases 286.

16. It is also significant that in this part of the will the testator, while referring to a minor child of Hester Alice Gray, speaks of it as entitled in expectancy but at the same time refers to the share or fortune of each child as separate and the income accruing from it also as distinct. The provision for the accumulation of interest and compound interest relating to the share of each child separately for its own benefit is absolutely inconsistent with the idea of the share not vesting in the child even before the child should attain twenty-one years of age. It is further very significant that the testator should refer to the period of such accumulation as a period during which there is suspense of absolute vesting. From all these indications the inference is strengthened, which has been arrived at already independently of them, that the estate taken by E.G. Adams was a vested interest on his completing twenty-one years. There is no question in this case of the quantity of the interest so vested because E.G. Adams was admittedly the only son of Hester Alice Gray and what vested in him was the whole of the fund in question.

17. It only remains then to consider the question whether on this basis of the fund having vested in E.G. Adams on his attaining twenty-one years there resulted any divesting under the clause containing the gift over.

18. The clause containing the gift over which has been contended to operate by way of defeasance or divesting any estate vested in E.G. Adams has already been set out. It is significant to begin with that in this clause there are no words of defeasance or divesting. But at the same time the words of the gift over are perfectly clear. According to the clause, in the event of there being no child living at the death of Hester Alice Gray, the gift over is to take effect. If the words had been merely that on the death of Hester Alice Gray ' without leaving children ' there should be a gift over, those words ' without leaving children ' would be construed only as meaning ' without leaving or having had children who have attained vested interest, ' and would not be held to be apt to disturb any vested interest as was held in the case of In re Cabbold; Cabbold v. Lawton (1903) 2 Ch 299. But the words are not merely ' without leaving children ' but ' leaving no child living at her death, ' and there being no possible ambiguity about such words, it has been held that such words should be construed literally and be given effect to. The leading case on this point is the case of In re, Hamlet (1888) LR 39 Ch D 426. The learned Judge in the First Court following this case held that E.G. Adams did not obtain a vested interest in the fund in question. It is impossible to understand how the learned Judge treated this case as an authority for coming to the conclusion that he did that there was no vesting of the fund in E.G. Adams. The case is undoubtedly an authority with regard to the gift over clause. But as regards the vesting itself, Lord Justice Cotton in that case held that two of the children who had attained twenty-one years before their mother's death had acquired a vested interest. At page 432 he says this : ' The daughter was under age and unmarried at the testator's death. She afterwards married and had several children two of whom attained twenty-one arid so acquired a vested interest; but all the children died before their mother. ' Again at page 435 the same learned Judge observes as follows : ' The argument which appeared to me to deserve most consideration is. that these words were to be considered as a mere continuation of the limitation which was to take effect if no vested interest was obtained by the children under the preceding words.' Both the counsel for the appellant relied on the words of the introduction, ' And in case my said daughter...' They said that those were not words which would be naturally used if the testator was defeating a previously vested interest. But I am struck with this, that in the latter part of the will, where the testator disposes of the unsold part of his real estate, he first gives it to the children by words which clearly would give them vested interest on their births, and then introduces a gift over by the same words as those we are now considering. I do not much rely on that clause as showing us what his intention was but only as showing us that he used the words ' And in case ' to introduce a limitation displacing a previous vested gift, a limitation which clearly was intended to displace a previous vested interest, and which could not be contended to be merely carrying out a series of limitations to take effect on failure of the previous objects of the gift. And further on at page 438 he states ' but there is no inconsistency in a gift over defeating a previous vested interest' and concludes with the following sentence : 'In my opinion, on the true construction of this instrument, the words express the event on which the gift over was to take effect too clearly notwithstanding any view we may have that it would have been much better if the testator had made a different disposition. '

19. In re, Hamlet (1888) LR 39 Ch D 426, therefore, far from being an authority for the fund not vesting, is strong authority in favour of its vesting. As regards the divesting, however, it is no doubt a clear decision in favour of the contention on behalf of the respondent. We should have felt ourselves bound to follow that decision and hold that the estate had vested in E.G. Adams became divested by reason of his not surviving his mother but for the presence in the clause of the following words, namely : ' Or so much thereof as shall not have become vested. ' The law, it has been said, does not favour divesting, and in any case, the conditions for divesting, and the intention to divest should be clearly made out. As it has been already pointed out there are no words in the clause indicating any defeasance or divesting. But as observed by Lord Justice Cotton in the case of In re, Hamlet (1888) LR 39 Ch D 426 if the gift over is absolutely clear it may necessarily involve a defeasance or divesting. ,The raison d'etre of such decisions as In re, Cabbold (1903) 2 Ch 299 is that such words as 'leaving no children' should be construed merely as meaning ' leaving or having had no children who have not obtained vested interest ' and should be construed so as not to disturb or divest any vested interest. In other words, unless from the gift over clause the intention is perfectly unambiguous, clear and definite that any vested interest whatsoever should cease and become divested, the gift over will not be held to have that effect. In the present case, however, the intention of the testator is perfectly clear from the words he had used that the gift over should not operate in respect of any interest that has vested. It therefore follows from this that the intention of the testator in the gift over clause was not to divest any vested interest.

20. The learned Counsel for the respondents contended in effect that the gift over clause should be read as if the words ' or so much thereof as shall not have become vested ' were not there. We could not possibly accede to any such contention. He also relied strongly for his argument on the case of Young v. Turner (1861) 30 LJ (QB) 268. So far as the question of the gift over and divesting is concerned that case is undoubtedly a case quite similar to the case In re, Hamlet (1888) LR 39 Ch D 426.

21. This case of Young v. Turner (1861) 30 LJ (QB) 268 undoubtedly bears many points of resemblance to the case before us, and it therefore follows that if there were no points of distinction between that case and this, we might have felt bound to follow the decision in that case of the very learned Judges who constituted the Court.

22. The questions considered and decided in that case were exactly the same that have arisen for decision in this case, namely, whether in the first place any estate did vest in a child that attained twenty-one years but died before the termination of the life-estate; and in the second place, whether even if the estate did vest, there was no divestment by the gift over if on the death of the life-tenant there should be no issue of her body alive. The main decision in the case was that even if there had been vesting there was a divesting as the result of the clause containing the gift over. This is what Justice Blackburn, who delivered the judgment of the Court in that case has said : 'And if an estate did vest in the issue of the body of the niece attaining twenty-one it would be divested upon the death of such issue in her life-time under the terms of the will. ' In this view it was unnecessary for the learned Judges to consider the question whether having regard to the terms of the particular will the estate had or had not vested in such a child. We must take it that it is for that reason that the case is generally cited only as an authority for the position that the general rule that a gift over which is directed to take effect on the death of some person without leaving issue should not be construed in such a manner as to divest any estate already vested is not applicable to cases where the intention' is perfectly clear from the language of the instrument that what was clearly intended was that the gift over should take effect if on the death of the life-tenant there should be no issue living of the deceased life-tenant. The rule laid down by this case is that if from the gift over clause the intention of the testator is to be clearly gathered! that any estate that may have vested previously should be divested on the contingency referred to in the gift over clause then such intention should be given effect to and not otherwise.

23. It is the same rule that following this case of Young v. Turner (1860) 30 LJ (QB) 268 that was again laid down in In re, Hamlet (1888) LR 39 Ch D 426 and it is accepting the rules so laid down we came to the conclusion that, having regard to the particular words of the gift over clause in the will before us the testator's intention clearly was that no estate which had become vested should be divested by the gift over clause. So far therefore as the construction of the gift over clause is concerned, the conclusion we have arrived at is clearly in consonance with the rule laid down in the case of Young v. Turner (1860) 30 LJ (QB) 268.

24. But that case was also sometimes referred to as an authority with regard to the question of vesting though the decision in the case as already observed turned only on the construction in the Aiyar would of the gift over clause. It is clear, however, that in that case, Justice Blackburn delivering the judgment of;, the Court found that the object of the testator was to provide only for such of the issue of his niece as may be living at the time of her death. The words in the will before the Court were ' And if my said niece shall depart this life leaving only one child of her body lawfully begotten, then I give and devise the property unto such only child and his or her heirs as soon as he or she attains the age of twenty-one years aforesaid. ' From the terms apparently of this clause of the will the Court came to the conclusion in that particular case that the intention of the testator was that only such children should take as survived the mother. So far, therefore, as the question of vesting is concerned, Young v. Turner (1861)) 30 LJ (QB) 268 should be deemed to belong to that class of cases where, having regard to the language used in the particular instrument, it was held that the intention of the testator was that surviving the mother or being alive at her decease was one of the conditions of the vesting of the estate.

25. We have already referred to that class of cases and held that on the language of the : will before us it was clear that E.G. Adams obtained a vested interest in the fund. If, therefore, the intention of the testator in the gift over clause was that the clause should affect any interest already vested, it necessarily follows that any estate vested in E.G. Adams could not be held to be divested or defeated by anything contained in the gift over clause.

26. The learned Counsel for the respondents contended that in the view taken by us of the gift over clause there could be no case of a vesting of a part of the estate as would seem to have been contemplated in the words in the gift over clause already referred to, namely, ' or so much thereof as shall not have become vested. ' But what we have been concerned with was the intention of the testator; and we cannot adopt a construction which would have the effect of defeating the clear intention of the testator merely because the words used by him might refer to a contingency which might never arise, more especially having regard to the fact that no one can be certain in the case of such complicated provisions what contingencies may or may not arise.

27. In our judgment, therefore, the learned Judge below was wrong, and, the appeal succeeds and should be allowed. It will be declared that the estate having become vested in E.G. Adams there was no divesting of that estate and that therefore on his death it passed to his representative, his father. Having regard, however, to the extremely difficult nature of the questions involved, we think this a proper case in which we should direct that the taxed costs as between attorney and client of both parties in this appeal also should come out of the estate. We certify for the two counsel on both sides.